SB 210 - CRIMES AGAINST CHILDREN/SUPPORT/CINA  1:43:57 PM VICE CHAIR THOMPSON announced that the first order of business would be CS FOR SENATE BILL NO. 210(FIN), "An Act relating to crimes against children; and providing for an effective date." [Left pending from the hearing on 4/11/12 was the motion to adopt a proposed House committee substitute (HCS) for CSSB 210(FIN), Version 27-LS1362\O, Wayne, 4/10/12, as the work draft.] 1:44:25 PM REPRESENTATIVE GRUENBERG moved to adopt a new proposed House committee substitute (HCS) for CSSB 210(FIN), Version LS-1362\U, Wayne, 4/12/12, as the working document. VICE CHAIR THOMPSON objected for discussion purposes. 1:44:50 PM AMY SALTZMAN, Staff, Senator Lesil McGuire, Alaska State Legislature, on behalf of the sponsor of SB 210, Senator McGuire, explained that no change had been made to Section 1, and mentioned that there would be a forthcoming change to Section 2. 1:46:59 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), concurred that no changes had been made to Section 1. She then discussed changes that would affect Section 2. She indicated that adopted into Alaska's assault law, AS 11.41.255, there would be an addition to the definition of "serious physical injury" to address victims that are under 12 years of age whose injuries result in serious disfigurement, serious impairment of health by extensive bruising or other injury that would cause a reasonable person to seek medical attention for the child from a health professional in the form of diagnosis or treatment, or serious impediment of blood circulation or breathing. REPRESENTATIVE GRUENBERG clarified that the new section in AS 11.41.255 would apply only to the term "serious physical injury" in AS 11.41.200-250. MS. CARPENETI explained that the rationale for the change was that although children can be seriously injured, their injuries may not be prolonged as they would be for an adult. MS. CARPENETI directed attention to Section 2 of Version O, and highlighted the proposed language: "(4) recklessly fails to  provide adequate food or liquids to a child, causing protracted  impairment of the child's health." She explained that under Version U, the words "quantity of" would be inserted between "adequate" and "food" to clarify that the provision would not apply to parents who may not be in the position to feed their children healthful food. She said Section 4 of Version O would be eliminated from Version U, because of the addition already mentioned in Section 2, and Section 4 of Version O would not be in Version U. She stated that Sections 5-12 are unchanged. 1:51:59 PM MS. CARPENETI said that subsection (i), in Section 13, of Version O has been removed, but the language in subsection (j) remains [now subsection (i), in Section 14]. She said Sections 14-18 of Version O were unchanged [now Sections 15-19 of Version U]. 1:53:12 PM VICE CHAIR THOMPSON removed his objection to the previous motion made to adopt a new proposed House committee substitute (HCS) for CSSB 210(FIN), Version LS-1362\U, Wayne, 4/12/12, as the working document. There being no further objection, Version U was before the committee. 1:53:55 PM MS. CARPENETI, in response to Representative Keller, said the term, "fact finder", in Section 6, page 4, line 24, is used in other places in the proposed bill language. She said it is a term used to include a jury or a judge, depending on the situation. In response to a follow-up question, she emphasized that the definition of "fact finder" is clear to practitioners who would be using the sections of language in which the term is found. 1:55:35 PM VICE CHAIR THOMPSON, having earlier noted that Version U contained handwritten suggestions for change, made a motion to adopt Conceptual Amendment 1, which incorporates those handwritten changes as follows: on page 2, line 31, changing the heading; on page 3, lines 1-3, deleting the language; on page 3, lines 4-5, adding language; on page 3, line 6, deleting part of the language; and on page 4, lines 5-22, deleting Section 5. REPRESENTATIVE HOLMES objected for the purpose of discussion. MS. CARPENETI explained that a working group had discussed the expansion of the definition of "serious physical injury" being a big change to Alaska law, because the current definition has been in statute since its application in 1978. She said the group concluded that it would be best to limit the definition to crimes of assault in the first, second, third, and fourth degrees, and reckless endangerment. 1:57:36 PM MS. CARPENETI, in response to a request from Vice Chair Thompson, read the language of Conceptual Amendment 1, which read in Version U, with the handwritten changes, as follows: *Sec.2. AS 11.41 is amended by adding a new section to read: Sec. 11.31.255. Definitions. In AS 11.41.200-11.41.250, "serious physical injury", in addition to the definition in AS 11.81.900(b), if the victim is under 12 years of age includes the following: (1) serious disfigurement; (2) serious impairment of health by extensive by extensive bruising or other injury that would cause a reasonable person to seek medical attention for the child from a health care professional in the form of diagnosis or treatment; or (3) impediment of blood circulation or breathing. 1:58:40 PM MS. CARPENETI, in response to Representative Hawker, confirmed that she had added the word "serious", preceding "impediment of blood circulation or breathing", on page 3, line 9, paragraph (3). She explained that the work group had agreed upon the need to add "serious" before "impediment", but had not written it down. VICE CHAIR THOMPSON said the committee needed to add "serious" on line 9. 1:59:16 PM REPRESENTATIVE HOLMES asked if subsection (b), on page 3, line 10, should remain in the bill. MS. CARPENETI indicated that subsection (b) should have been removed. VICE CHAIR THOMPSON announced, "And so, the conceptual amendment is corrected." REPRESENTATIVE HOLMES said, "Clarified." VICE CHAIR THOMPSON responded, "Yeah, clarified." 1:59:37 PM MS. CARPENETI, in response to Representative Gruenberg, said AS 11.81.900(b) contains the definitions that apply to all of Title 11. 2:03:25 PM MS. CARPENETI, in response to Representative Gruenberg, said the intent is for the definitions [relating to "serious disfigurement" in children under the age of 12] to be an addition to the definitions found in AS 11.81.900(b)(56), so that it would be clear that "serious disfigurement" would apply to a victim under 12 years of age, whereas a victim over that age would fall under "serious and protracted disfigurement". She reiterated that children heal faster. 2:04:24 PM REPRESENTATIVE LYNN asked whether there is language addressing the abuse of children whose parents tie them up. MS. CARPENETI said Section 3 talks about the endangering of a child. In response to a follow-up question, she offered her understanding that the situation described by Representative Lynn would be considered an assault. REPRESENTATIVE GRUENBERG ventured that a child who has been tied up may not incur physical injury, but may suffer mental injury. He suggested an amendment could be made to Conceptual Amendment 1, to add "physical or mental" before "health". 2:06:57 PM MS. CARPENETI said such conduct is already covered under Alaska's kidnapping statutes. In response to a question, she confirmed that a parent can kidnap his/her own child. 2:08:38 PM REPRESENTATIVE HOLMES removed her objection to the motion to adopt Conceptual Amendment 1, [as amended]. There being no further objection, Conceptual Amendment 1, [as amended], was adopted. 2:08:56 PM VICE CHAIR THOMPSON made a motion to adopt Conceptual Amendment 2, as follows: Page 8, line 24: Delete "HUMAN TRAFFICKING TASK FORCE" Insert "HUMAN TRAFFICKING/PROMOTING PROSTITUTION (SEX TRAFFICKING) TASK FORCE" REPRESENTATIVE KELLER objected. 2:10:10 PM MS. CARPENETI said her boss suggested that since human trafficking provisions and promoting prostitution provisions are similar statutes, it would be helpful to law enforcement and the DOL to have a study that includes both. She relayed that yesterday the House passed a bill that changed the term "promoting prostitution" to "sex trafficking", and explained that because the law still uses the term "promoting prostitution", both terms are included in Conceptual Amendment 2. 2:11:08 PM REPRESENTATIVE KELLER removed his objection. There being no further objection, Conceptual Amendment 2 was adopted. 2:12:17 PM MS. CARPENETI, regarding the task force language of Section 19, expressed her hope that the committee would direct the Legislative Affairs Agency to change all references to the term "human trafficking" to "human trafficking and promoting prostitution". She recommended that language could be added to Conceptual Amendment 2 to that effect. VICE CHAIR THOMPSON pointed out that Conceptual Amendment 2 had already been adopted. 2:13:22 PM REPRESENTATIVE HAWKER recommended that Vice Chair Thompson state clearly for the record that the intent inherent in Conceptual Amendment 2 was that those specific words be conformed throughout Section 19. VICE CHAIR THOMPSON announced that that wording has to be used consistently throughout Section 19, and that Conceptual Amendment 2 is the vehicle by which to make that happen. REPRESENTATIVE GRUENBERG directed attention to Section 20, on page 10, line 1, and offered his understanding that it is no longer accurate in mentioning Section 19 and would have to be renumbered. 2:14:25 PM REPRESENTATIVE HOLMES noted that a disagreement between the DOL and the PDA concerning Sections 10 and 11, on page 5, lines 25, through page 6, line 6, was still unsettled. 2:16:22 PM QUINLAN STEINER, Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), said that the conceptual amendments seem consistent with discussions. Regarding Sections 10 and 11, he said under current law the full amount of suspended time of a sentence can be shortened, but [Sections 10 and 11 of Version U] raise some concern about "the possibility of this becoming an unreviewable sentence imposition in the sense that sentence time is not subject to appeal until it's imposed, and in this case the imposition of it would be statutorily required." He confirmed that was the topic on which the DOL and the PDA were unable to reach common ground. 2:18:36 PM JOSHUA DECKER, Staff Attorney, American Civil Liberties Union of Alaska (ACLU of Alaska), said that Jeffrey Mittman, the executive director of ACLU of Alaska had submitted written testimony to the committee yesterday. He said while ACLU thinks the changes in Version U are an improvement, it still has concern that modifying the definition of "serious physical injury" - even just within the assault statutes - will result in a lack of clarity under Alaska law rather than simply enacting a new offense designed to address the committee's concern about serious physical injury of minors. He said ACLU encourages the committee to adopt a new offense specifically and narrowly tailored to that concern. 2:19:58 PM RICHARD SVOBODNY, Deputy Attorney General, Central Office, Criminal Division, Department of Law (DOL), said Section 10 addresses conforming changes related to Section 11. He said Section 11 is his focus. He related that 33 or his 35 years in law have been spent as a prosecutor. He said prosecutors try to set goals, do justice, be fair, and protect the community. He said he thinks Section 11 is germane to those goals; it is the "a deal is a deal" section, where all the parties have come to an agreement. Mr. Svobodny said typically, in 95 percent of cases, the person on probation messes up by committing another crime, drinking, or not going to mental health counseling ordered by the court, for example. A petition to revoke probation is filed by a probation officer. In a case where there is a two-year suspended sentence, the prosecutor may recommend that the person be given a year and the defense may ask for six months or no jail time. Mr. Svobodny said the final decision is up to the judge, but it is not doing justice to break the original agreement and do away with all the originally agreed upon suspended time. MR. SVOBODNY said when he was involved in plea negotiations he would consider a case in terms of protecting the victim and the public. He said five years with one suspended may be better than two years with no suspension, because the person would have the supervision of a probation officer and if the person breaks his/her parole, another jury trial is not necessary, there just needs to be proof to the court by a preponderance of the evidence, from which the judge can figure out what is right for the situation. He opined that the decisions made in the last year have violated the principles of fairness, justice, and protecting the community. MR. SVOBODNY said often the period and length of probation is determined based upon getting the victim paid. If a judge terminates [the original agreement] because the person has violated the terms of probation, then the victim will have to go through civil court for restitution. He stated that when everything has been bargained for up front, the person who violates his/her probation should not be rewarded. He opined that Section 11 is good public policy. 2:29:32 PM REPRESENTATIVE HOLMES said she is questioning who should take the lead in terms of probation revocation and proceedings and whether the judge should have more or less flexibility. She said it seems that tying the hands of the judge by saying that he/she cannot make decisions unless both sides agree gives a lot of power to the prosecutor. She related that because the issue is complex, her recommendation would be to remove [Sections 10 and 11] and address the issue further during the interim. MR. SVOBODNY clarified that no one is trying to tie the judge's hands with regard to whether or not to impose suspended time. Using his previous example of two years' time or five years' time with four years suspended, he said the judge would still have the discretion to impose from nothing to up to two years in jail - whatever he/she deems is appropriate within, but not less than, the originally bargained for range. 2:34:52 PM MR. SVOBODNY, in response to Representative Lynn, reiterated that he supports Section 11. With regard to the concern expressed by Mr. Steiner that [Sections 10 and 11] would limit a defendant's right to appeal a sentence, he pointed out that there are specific provisions of Alaska law addressing the appeal of sentences, and those laws are not being amended. 2:35:51 PM VICE CHAIR THOMPSON, after ascertaining that no one else wished to testify, closed public testimony on SB 210. 2:36:06 PM REPRESENTATIVE HOLMES relayed that she still wasn't comfortable with Sections 10 and 11 of SB 210, but was not at this time going to make a motion to delete them. VICE CHAIR THOMPSON said he would like Sections 10 and 11 to remain in the bill. 2:36:42 PM REPRESENTATIVE KELLER moved to report the proposed HCS for CSSB 210(FIN), Version 27-LS1362\U, Wayne, 4/12/12, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HCS CSSB 210(JUD) was reported from the House Judiciary Standing Committee.